Mental Anguish

Mental anguish and emotional distress

A dog bite victim, like any other person who is physically injured by the wrongdoing of another, is presumed to have mental anguish, otherwise known as emotional distress. A person who is bitten by a dog has physical manifestations. The physical side of the injury may be accompanied by emotional distress as a separate injury linked to the physical wounds. The dog bite victim may suffer from a variety of things including but not limited to:

  • Anxiety and terror when remembering the attack
  • Nightmares
  • Fear of dogs
  • Anxiety about going outside
  • Post traumatic stress disorder (or, if it lasts long enough, post traumatic stress syndrome)

When the injury is mental anguish, the conditions for liability vary greatly from state to state. A few jurisdictions recognize a general right to recover for negligently inflicted emotional distress. See Taylor v. Baptist Medical Ctr., Inc., 400 So. 2d 369 (Ala. 1981); Montinieri v. Southern New England Tel. Co., 175 Conn. 337, 398 A.2d 1180 (Conn. 1978); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509, 52 Haw. 283 (Haw. 1970); Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282 (Me. 1987); Johnson v. Supersave Markets, Inc., 211 Mont. 465, 686 P.2d 209 (Mont. 1984); Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983); Johnson v. Ruark Obstetrics and Gynecology Assoc., 327 N.C. 283, 395 S.E.2d 85 (N.C. 1990); Schultz v. Barberton Glass Co., 4 Ohio St. 3d 131, 447 N.E.2d 109 (Ohio 1983). It should be noted that a dog bite victim does not fall into this category of claims, the reason being that this category is for “pure” mental distress claims, not those which involve physical wounds.

A great many states limit recovery for emotional distress by requiring proof of a physical manifestation. See, e.g., Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668, 669 (Ariz. 1979); Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163, 1165 (Colo. 1978); Robb v. Pennsylvania R.R., 58 Del. 454, 210 A.2d 709, 715 (Del. 1965); Champion v. Gray, 478 So. 2d 17 (Fla. 1985); Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 311 S.E.2d 818 (Ga. 1984); Hatfield v. Max Rouse & Sons Northwest, Inc., 100 Idaho 840, 606 P.2d 944, 955 (Idaho 1980); Hoard v. Shawnee Mission Medical Ctr., 233 Kan. 267, 662 P.2d 1214 (Kan. 1983); Vance v. Vance, 286 Md. 490, 408 A.2d 728 (Md. 1979); Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 174 (Mass. 1982); Daley v. LaCroix, 179 N.W.2d 390, 395 (Mich. 1970); Okrina v. Midwestern Corp., 282 Minn. 400, 165 N.W.2d 259 (Minn. 1979); Sears, Roebuck & Co. v. Young, 384 So. 2d 69, 71 (Miss. 1980); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (N.H. 1979); Jines v. City of Norman, 351 P.2d 1048, 1052 (Okla. 1960); Melton v. Allen, 282 Ore. 731, 580 P.2d 1019, 1021-22 (Or. 1978); Banyas v. Lower Bucks Hosp., 293 Pa. Super. 122, 437 A.2d 1236, 1239 (Pa. Sup. Ct. 1981); Reilly v. United States, 547 A.2d 894, 895 (R.I. 1988); Dooley v. Richland Memorial Hospital, 283 S.C. 372, 322 S.E.2d 669 (S.C. 1984); Chisum v. Behrens, 283 N.W.2d 235, 240 (S.D. 1979); Laxton v. Orkin Exterminating Co., 639 S.W.2d 431, 433-434 (Tenn. 1982); Vaillancourt v. Medical Ctr., 139 Vt. 138, 425 A.2d 92, 95 (Vt. 1980); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214, 219 (Va. 1973); Meracle v. Children’s Serv. Soc’y, 149 Wis. 2d 19, 437 N.W.2d 532 (Wis. 1989).

Other states allow recovery where the claimant establishes the breach of some independent duty. Burgess v. Superior Court, 2 Cal. 4th 1064, 831 P.2d 1197 (Cal. 1992); Corgan v. Muehling, 143 Ill. 2d 296, 574 N.E.2d 602, 158 Ill. Dec. 489 (Ill. 1991); Oswald v. Legrand, 453 N.W.2d 634 (Iowa 1990); Clomon v. Monroe City Sch. Bd., 572 So. 2d 571 (La. 1990), Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). California permits recovery “where a duty arising from a pre-existing relationship is negligently breached.” Burgess v. Superior Court, 2 Cal. 4th 1064, 831 P.2d 1197, 1201 (Cal. 1992). In Burgess, the plaintiff sued her obstetrician for emotional distress caused by the doctor’s negligent delivery of the plaintiff’s child. The court viewed the claim as a traditional professional malpractice cause of action, which, under California law, supported mental anguish damages. Id. at 1203. The duty allegedly breached was that arising from the doctor-patient relationship. Id. A dog bite victim would be entitled to recover under this principle also.

Some courts have recognized an independent cause of action for “serious” or “severe” emotional distress. See Schultz v. Barberton Glass Co., 4 Ohio St. 3d 131, 447 N.E.2d 109 (Ohio 1983); Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509, 52 Haw. 283 (Haw. 1970).

Insurance coverage for mental anguish cases

Even though there may be a cause of action for infliction of mental anguish, a victim may not recover compensation, as a purely practical matter, if there is no insurance coverage for such an injury. “Mental anguish is typically not covered under primary CGL policies because it is not included within the policy definition of ‘bodily injury.’ However, despite the clear language of the policy, some states include mental anguish within the standard Insurance Services Office, Inc. (ISO), definition of bodily injury providing coverage for those damages.” (R. Steven Rawls and Rebecca Appelbaum, “When Does Liability Coverage Exist for Mental Anguish without Bodily Injury?“, Internet,, accessed February 23, 2008.)

The wording of the policy must be consulted. If a policy promises coverage for “bodily injuries for which the insured is liable,” there may be no coverage without a physical injury of some sort. Trinity Universal Insurance Company v. Cowan, 945 S.W.2d 819 (Tex. 1997) (“absent an allegation of physical manifestation of mental anguish, a claim of mental anguish is not a ‘bodily injury’ as defined in the policy for purposes of invoking the duty to defend.”).

Mental anguish and emotional distress suffered by bystanders such as the relative of a dog bite victim

Relatives and other bystanders who witnessed the attack also may suffer mental anguish and emotional distress. For example, the parents of a child victim might never recover from the guilt they might feel from not protecting their child, even when there was no opportunity to save him or her from the attack.

The law does not grant a recovery, however, to every relative and bystander. Each state has different standards as to who may recover. For example, the persons who may recover might be limited to only parents, brothers and sisters, not cousins, grandparents or friends. Another example might be a state that requires a relative to have actually seen the attack the moment it happened, not a minute later. Bystander liability is covered at Legal Rights of Bystanders and Family Members and on many of the state law pages of Dog Bite Law.


Here are two strategy discussions that Attorney Kenneth Phillips had with, first, a parent who wondered whether his son’s case would benefit from some mental health treatment, and second, an attorney who was representing a client that was bitten on the hand but principally suffered from emotional distress.

  • Whether A Child’s Case Might Benefit From Involvement By Mental Health Professional

There are legal and financial aspects of getting psychological treatment for the emotional damage caused by being attacked by a dog. In my experience, treatment generally does not add much to a case. There are a lot of reasons for this:

a. In court, the testimony of mental health professionals is susceptible to challenges. The less extreme the emotional damage, the less credible the testimony.

b. Causation of distress is very difficult to prove. Two people who are injured the same way might react in opposite fashions. An extreme reaction is often the result of being “pushed over the edge.” The inquiry often turns into a quest to uncover all of the events, medical conditions, and possible glitches in upbringing that originally placed the victim at the edge.

c. Not all people will benefit from mental health treatment. Not all mental health professionals are good.

For these reasons and more, many have concluded that mental health treatment and legal claims do not mix. In a lot of cases, the emotional distress aspect of the presentation is so riddled with real and theoretical issues that it actually distracts from the physical damage caused by the dog attack.

Turning to the financial aspects of mental health treatment, the usual way of paying for it is to use whatever health insurance is available, whether through a group policy or a government program. When there is none, clients have gotten some counseling from their church, school or physician, which in some cases has been very beneficial. When a dog bite case finally settles, there usually is enough money to reimburse the cost of mental health treatment, if the victim or his family has advanced it.

  • Mental Health Care Or Additional Medical Evidence: Which Is More Effective?

Generally, anything that has to be proved by a mental health professional of any kind, and cannot be proved in any other way, has relatively small value, unless there is something special about it or it can also be proved by the results of standardized tests.

I have found that a case that relies entirely on psychological evidence will receive a very small offer from an insurance company. I think that one of the reasons for this is that they stand to win the case entirely if the jury gets a bad feeling about the plaintiff. If little can be said about an injury, other than that it caused emotional distress, it is widely believed that a jury probably will react with hostility.

This is because of the political climate in the United States over the past 20 years or so. Insurance companies have planted a great deal of misinformation in the press to give the impression that there is a runaway jury phenomenon, even though studies have prove that jury awards actually have not increased in number or amount (meaning real dollars). In its campaign of misinformation, the insurance industry has been aided by chambers of commerce and the Republican Party. As result, the public has forgotten the Golden Rule, has lost its empathy for people who suffer, and has almost become Darwinian in the sense of making negative judgments of people who are victims of accidents. Just look at reality television shows that present painful incidents as entertainment. The trouble and the injuries of victims are for the entertainment of the masses, correct? Not something to be taken seriously, correct? If its purpose is to amuse us, then how can we award money for it in court? The sad truth is that the winner-takes-all, succeed-at-any-cost attitude of business has seeped into the minds of ordinary people. It is this attitude that resulted in cases like Enron, which robbed so many average people of their life’s savings. The average citizen does not realize that his reaction to tragic accidents is a conditioned response that was planted in him by wealthy corporations having the desire to operate freely without being held in check by the courts. The jury is the conscience of the community, and business interests aided by political hacks taking campaign contributions from heartless corporations have all but silenced that conscience in our time.

This is not to say that every case of emotional distress is a loser. I represented a woman who was bitten on the buttocks by the Rottweilers that lived next door. After that, she had reason to think that the dogs were stalking her even when she was in her own backyard, and even when she walked through her house, which was a townhouse that shared a common wall with the residence of the dog owners. She became terrified of these Rottweilers, and her extreme and severe emotional distress actually had an effect on her work and even on her ability to think. She complained alot to the neighbors, including going over and crying to them. Six months after the original attack, the dogs were loose on the street, and they chased her from the sidewalk to her front door. In closing the door upon them, she sprained her thumb. She had been getting psychological therapy at Kaiser, and she also had group therapy. Standard psychological tests were administered, which showed that her cognitive functioning was dropping as a result of stress. I settled her case for $95,000, even though the bodily injuries consisted only of a bite to the buttocks and a sprained thumb, and there were almost no medical expenses.

The best thing for your case would be a medical report that confirmed loss of sensation, continuing pain, and some degree of disability as a result of the wound to the hand. If you do not have that, then perhaps there should be some real psychological testing if you believe that there was a substantial degree of emotional distress. You also might be able to buttress your claim by presenting letters from coworkers, supervisors, neighbors and family members describing behavior on the part of your client that is abnormal and strongly suggestive of extreme and severe emotional distress. The testimony of such people would be far more convincing in a court of law then the opinion of a psychologist who was retained as an expert witness.